#### Wilson, Appellee, *v.*Kennedy, Appellant.

(No. 31719

Decided June 8, 1949.)

*488
      *Mr. Charles E. Wilson,*for appellee.

*Mr. C. R. Beirne,*for appellant.

Turner, J.

This is an appeal from the Court of Common Pleas of Brown county to this court in an election case. The trial court’s jurisdiction is to be found in Section 4785-166 *et seq.,*General Code. The appellate jurisdiction of this court is to be found in-Section 4785-172, General Code, enacted pursuant to-Section 21, Article II of the Ohio Constitution and which provides:

> “The person against whom the judgment is rendered may appeal on questions of law, within twenty days, to the Supreme Court of Ohio; but such appeal shall not supersede the execution of the judgment of the court. Such appeal shall take precedence over all other causes upon the calendar, and shall be set down for hearing and determination at the earliest convenient date. The laws and rules of the court governing appeals shall apply in the appeal of contested election cases. If the judgment of the lower court be affirmed,. *489the Supreme Court shall order the judgment of such lower court to be enforced, if the party against whom the judgment is rendered is in possession of the office.”

The case was tried on an agreed statement of facts. While there were various grounds upon which the -contester claimed to have been elected, the trial court passed upon one question only as shown by the following quotation from the lower court’s decision:

> “Therefore, my conclusion is that the present election laws contain no provision for the ‘write-in’ meth■od of voting for a candidate in the general election, ■and none of the votes cast for the contestee for the office of prosecuting attorney, in the general election held in Brown county, November 2, 1948, should have ■been counted by the board of elections.

> “This conclusion is decisive and renders it unnecessary to pass on the other questions presented in this case.”

As this court passes only upon questions of law passed upon by the lower court, we, therefore, have before us only the question of the validity of a name written in on a ballot cast at the general election held November 2, 1948. In other words, was it the duty •of the board of elections to count or to disregard a name written in the blank space appearing upon the ballot at a general election where the party tickets ■contained no printed name for the particular office?

It is said in 15 Ohio Jurisprudence, 440, Section 104:

> “In a contest proceeding, the action of the election •officers in conducting the election, and in making and ■canvassing the returns and declaring the result thereof, is attended with a prima facie presumption of regularity.”

It is contended by the appellee “that under the •election laws as amended, and effective January 2, 1948, a person can only become a candidate for the ■office to be filled at the general election by the method *490set out in the various statutes; and that the so-called ‘write-in’ campaigns are no longer recognized in the general election.”

.No candidate for the office of prosecuting attorney-had been nominated by either the Republican or Democratic party at the primary election but appellee’s name appeared on the general election ballot as an independent candidate regularly nominated. There was a blank space provided under the ballot title of prosecuting attorney on each of the party columns.

Appellee’s contention is based upon the amendment of former Section 4785-131, General Code, which amendment deleted a former provision authorizing the substitution of a name by writing another in black lead pencil and'making a cross mark in the blank space at the left of the name so written. Appellant counters with the argument that such vote (write-ins) is still specifically recognized by Section 4785-144, General Code, which it is claimed recognizes the “write-in” where there is a blank space provided therefor.

Section 4785-144, General Code (122 Ohio Laws, 353), provides in part as follows:

> “No ballot shall be counted which bears any marks other than ‘X’ marks placed thereon or a name written therein by the voter, in a blank space provided therefor, and the printed or other matter ordered placed thereon for use in such precinct by the board of elections.”

Former Section 4785-144, General Code, provided in part as follows:

> “No ballot shall be counted which is marked contrary to law, except that no ballot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.”

Appellee argues:

> “However, said Section 4785-144 as amended and effective January 2, 1948, makes no provision whatso*491ever requiring the various precinct officials to determine the voter’s choice. In other words, the question of the intention of the voter is completely deleted and •eliminated therefrom.”

While it is true as claimed by the appellee that the ■question of intention has been deleted from Section 4785-144, General Code, yet the ascertainment of the intention of the voter is still implicit as a duty to be ■observed by the board of elections in the canvass of the vote. Counsel for appellee entirely ignores the ■following language of Section 4785-144, General Code:

> “No ballot shall be counted which bears any marks ■other than ‘X’ marks placed thereon *or a name written therein by the voter, in a blank space provided therefor** * (Italics ours.)

The foregoing is a general provision and applies to the counting of the ballots at a general election •and was amended by striking out all of the former language except, “No ballot shall be counted which,” the remainder of the section being entirely rewritten. This amendment was contained in Amended Substitute Senate Bill No. 3, 122 Ohio Laws, 325, 353,- passed June 2, 1947, and effective on and after January 2, 1948, while Section 4785-131, General Code, was amended on May 6, 1947, effective on and after January 2, 1948, by Amended Substitute Senate Bill No. 109 (122 Ohio Laws, 103, 125).

In the *per curiam*opinion in the case of *State, ex rel. Bigelow,*v. *Butterfield et al., Board of Elections of Hamilton County,*132 Ohio St., 5, 6, 4 N. E. (2d), 142, it was held: ‘ ‘ Statutes relating to elections should be ■construed *in pari materia.*’ ’

While other sections of the election laws *in pari materia*may cast some doubt upon the real intention of the General Assembly, yet a court should not disregard a plain provision of a statute, amended and re*492written, to become effective at the same time as the-earlier enacted section *in pari materia.*As an indication that the General Assembly was assuming that “write-ins” were still authorized, attention is called1 to paragraph 6 of Section 4785-161c, General Code, amended in 119 Ohio Laws, 127, and still effective, wherein it is provided in respect of the requirements of voting machines as follows:

> “It shall permit each elector at all elections, other than primary elections, to vote a straight party .ticket by one device, and by one device to vote for all candidates of one party for presidential electors; to vote-a mixed ticket selected from the candidates of any and all parties and from independent candidates; *and to vote for persons whose names are not on any-ballot.'”*(Italics ours.)

' Constitutional questions in respect of the right to-vote have been raised. It is the duty of a court where constitutional questions are raised as here to liberally construe a statute to save it from constitutional infirmities.

In 8 Ohio Jurisprudence, 160, Section 61, it is said:.

> “The presumption in favor of the constitutionality of statutes leads to the conclusion that where the validity of an act is assailed, and there are two possible interpretations, one of which would render it valid, and the other invalid, the court should adopt the former, so as to bring the act into harmony with-the Constitution.”

In 8 Ohio Jurisprudence, 154, Section 58, it is said:

> “It is a well-established canon of construction-that every reasonable presumption be indulged in favor of the constitutionality of a statute.”

Under Section 1, Article V of the Ohio Constitution,, every qualified elector is entitled to vote at all elections.

*493It was held in the second paragraph of the syllabus in the case of *Monroe*v. *Collins,*17 Ohio St., 665:

> “The legislature have no power, directly or indirectly, to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise ; and laws passed professedly to regulate its exercise or prevent its abuse must be reasonable, uniform and impartial.”

It was said by Judge Stewart in the case of *State, ex rel. Beck,*v. *Hummel, Secy, of State and Chief Election Officer,*150 Ohio St., 127, 139, 80 N. E. (2d), 899.

> “All election statutes should be liberally interpreted in favor of the right to vote according to one’s belief or free choice, for that right is a part of the very warp and woof of the American ideal and it is a right protected by both the constitutions of the United States and of the state.”

In view of the language contained in Sections 4785-144 and 4785-161u, paragraph 6, General Code, and in view of the constitutional right to vote, we are of the opinion that the name of a person written upon a ballot in the blank space provided therefor under the designation of the office to be filled (in this case, prosecuting attorney) should be counted as a vote for the person whose name is so written at the November 2, 1948, election.

Therefore, the judgment of the trial court herein is hereby reversed and this case is hereby remanded to the Court of Common Pleas of Brown county for fur- ^ ther proceedings according to law.

*Judgment reversed.*

Weygandt, C. J., Hart and Zimmerman, JJ., concur*

Matthias and Taet, JJ., dissent.

Stewart, J., not participating.

*494Matthias and Taft, JJ.,

dissenting. Prior to January 2, 1948, Section 4785-131, General Code, contained specific provisions as to fiow a ballot should be marked. One of the provisions (subdivision 6) related to writing in the name of a candidate. The statute did not provide separate rules for marking of the party column ballot and for marking of the nonpartisan or primary election ballot.

The statute, as amended effective January 2, 1948, contains the provision, “In marking a party column ballot the voter shall observe the following rules * * Then follow certain specific rules for marking such ballot, but no provision for a write-in of any name. The statute then provides:

> “In marking a nonpartisan or primary election ballot the voter shall observe the following rules:

> *i i** * ft « =X-

> “2b. If the voter desires to vote for the nomination of a' person whose name is not printed on the ballot he may do so by writing such person’s name on the ballot in the proper place provided for such purpose and placing ‘X’ in the rectangular space on the ballot at the left of the name so written.”

It seems obvious that the General Assembly, by this amendment, intended to take away the right which a voter previously had to write in the name of a candidate on the party-column ballot. This intention is made even clearer by the amendment of Section 4785-144, General Code, effective the same day, reading:

> “No ballot shall be counted which bears any* marks -other than ‘X’ marks placed thereon or a name writ-ken therein by the voter, in a blank space provided kherefor * *

The amendment of this section eliminated the provision which formerly appeared therein, “that no bal*495lot shall be rejected for any technical error unless it is impossible to determine the voter’s choice.”

The view of the majority seems to be that, because a blank did appear in each of the party columns under the heading of “Prosecuting Attorney,” the writing of a candidate’s name therein was writing it “in a blank space provided therefor,” within the meaning of Section 4785-144, General Code. Nowhere in the General Code do the statutes provide for any- blank space of this kind on the party-column ballot. As hereinbefore pointed out, such “a blank space” is mentioned as “provided therefor” on the nonpartisan or primary-election ballots by Section 4785-131. Similar provision is made for such a blank space on the primary ballot by Section 4785-80, General Code, and the manner of writing in names at a primary election-is specifically covered by Section 4785-87, General Code.

The rules for marking the party column ballot, set forth in Section 4785-131, are very specific. In our opinion, the omission from these specific rules of any provision for a write-in, especially when taken in connection with the specific provision for a write-in in the marking of a nonpartisan or primary election ballot, clearly shows an intention of the General Assembly to provide against write-ins on the party column ballot.

Keliance is placed upon Section 4785-161c, General Code. This section merely prescribes the type of voting machines to be secured. While it might not be a reasonable provision to require a machine which would permit the voter to write in the names of candidates if write-ins were not permitted, it does not follow that the failure to amend this statute, so as to eliminate that requirement, indicates any intention *496of the General Assembly to avoid the clear import of the language used by it in adopting amended Sections 4785-131 and 4785-144.

We agree that a statute should if possible be so construed as to save it from constitutional infirmities. However, the judgment of the lower court deprived no one of his right to vote. It deprived no one of his right to seek, in a proper manner, the nomination of a candidate. Those who tried to vote for the contestee simply neglected to get her name printed on the ballot. They could have done that by following the method prescribed by the General Assembly. There is no constitutional inhibition against reasonable regulations of elections by the General Assembly. See *State, ex rel. Weinberger, a Taxpayer,*v. *Miller,*87 Ohio St., 12, 99 N. E., 1078, 44 L. R. A. (N. S.), 712, Ann. Cas. 1913E, 761; *State, ex rel. Bateman,*v. *Bode,*55 Ohio St., 224, 45 N. E., 195, 60 Am. St. Rep., 696, 34 L. R. A., 498; *Daggett v. Hudson,*43 Ohio St., 548, 3 N. E., 538. 54 Am. Rep., 832.

If existing laws are to be amended that should be accomplished by legislative enactment and not by judicial construction.